Howard County v. Connolley

¹⁰² KENNEY, Judge. The Circuit Court for Howard County dismissed Howard County’s Complaint to Acquire a Motor Vehicle initiated pursuant to Maryland Code Ann. (1996 Repl.Vol.1999 Supp.), § 297(h)(6)© of Article 27. The County, appellant, presents the following issue on appeal: Did the trial court err when it dismissed the Complaint because the trial was not held within the 60 day period in Article 27, Section 297(h)(6)©? Appellee, Joseph Connolley, filed a cross-appeal and presents three issues, which we have re-numbered as follows: I. Did the trial court err in holding that the police are not required to obtain a warrant before seizing a truck from the owner’s locked garage, where there was no exigency and seizure was not incident to arrest?

II

Whether Article 27, Section 297(d) violates the Fourth Amendment by allowing the police to seize vehicles from private property, where no exigency exists, without a warrant?

III

Did the trial court err in holding that probable cause existed to believe that appellee/cross appellant’s truck had been used in violation of Article 27 Section 297? FACTUAL AND PROCEDURAL BACKGROUND On January 21, 1999, a Howard County grand jury, based on an ongoing investigation that included surveillance and the interception of several telephone calls, returned two indictments against Connolley alleging that he conspired to distribute and possess cocaine on October 10 and October 15, 1998. Bench warrants were issued on April 7, 1999, for Connolley’s arrest and executed on April 26, 1999, at Connolley’s home. At the time of execution, Detective Ferra directed Connolley to unlock a detached garage where his 1998 GMC truck was parked.

Connolley did so, and the truck was seized by the officer. Detective Ferra provided Connolley with a Notice of Conveyance Seizure document, which he signed. No drugs were found on Connolley, in his residence, or in the truck. ¹⁰³ On May 27, 1999, the County filed a Complaint to Acquire a Motor Vehicle, pursuant to Art. 27, § 297, alleging that the vehicle was “subject to forfeiture because it was used to facilitate the transportation, sale, possession, or concealment of controlled dangerous substances.” Enclosed with the Complaint was a letter to the clerk of the court requesting that a summons be issued and served within ten days. The letter also noted: “Please be advised that, pursuant to Annotated Code of Maryland, Art. 27, subsection 297(h)(6)(i), a hearing must be set within sixty (60) days from the filing of an answer, or the publication of the notice, whichever is later.” Copies of the Complaint and letter were mailed to Connolley on June 1, 1999, and received on June 2, 1999.

Notice of the Forfeiture was posted on the courthouse door by the sheriff from May 27, 1999, to June 27, 1999, as required by Art. 27 § 297(h)(4)®. On June 10, 1999, Connolley filed a Motion to Dismiss, arguing that the County had “well over Five (5) months to obtain a court order authorizing seizure of the subject vehicle and failed to obtain an order” from a court having jurisdiction over the vehicle. The County responded, asserting that the forfeiture statute “permits the seizure of a motor vehicle without a seizure warrant if the seizure occurs pursuant to an arrest warrant, or there is probable cause to believe that the property was used in violation of the narcotics law.” A hearing on the motion to dismiss was held on September 3, 1999. After evidence was taken, 1 the trial court denied Connolley’s motion to dismiss, stating, in pertinent part: What I’m saying is that based on the information that Corporal Ferra received from another member of his police force, plus the—the Notice of Forfeiture, plus the Indict ¹⁰⁴ ment and the other investigations that the police had done, there was sufficient probable cause to issue that Notice of Seizure.

Probable cause was the conversations, the ongoing investigation as well as the Indictments. On September 7, 1999, Connolley filed an answer to the Complaint, which did not contain a request for a hearing. On October 7, 1999, Connolley filed a separate pleading requesting a hearing on the matter. On October 8, 1999, the clerk of the court set January 20, 2000, as the hearing date.

On October 14, 1999, Connolley filed a motion to recuse Judge Gelfman because she signed the wiretap order in Connolley’s criminal investigation, the validity of which was disputed. The motion was granted and the case was assigned to another judge, thereby postponing the hearing date until February 17, 2000. At the February 17, 2000 hearing, Connolley moved to dismiss the complaint based on the court’s failure to set timely a hearing. The trial court granted the motion, finding: We’re on all fours, so anybody looking at this record will know exactly what, what the issues are.

Well I would suggest the next time the legislature revises this statute that they might want to use the word similar to what it used in Art. 27, section 591, which reflects that the trial may not be held later then. I think that would make it even clearer to somebody like me. But, but I think the legislature in amending the section to provide that the hearing shall, changing the language in essence said that the hearing shall be scheduled and then going forward and saying that the hearing should take place within sixty days. That’s the way I read it.

And I think the sanction, I would agree, you know, what sanctions we, well, you know, what if any sanction the Court could impose, you know, I would agree that the State in a criminal case the, the condemning authority in a, or seizing authority in a forfeiture case isn’t necessarily responsible for scheduling cases. It seems to ¹⁰⁵ me by analogy even in a criminal case the State doesn’t schedule cases but we impose sanctions upon the State for the failure of the case to take place under Hicks. I, I believe that the, in this case, the legislature was directing that the hearing take place within sixty days from the triggering events and that they didn’t do so. It would be, just so the record is clear again, if a hearing didn’t take place within sixty days it would be the position of the Defendant that the Court should impose some sanction?

All right, I, I believe the legislature, although not directly providing a sanction for failure to conduct a hearing within sixty days, although not specifically providing for some sanction the Court could impose, I’m persuaded by the Vera 2 [sic] case that an appropriate sanction is for sake of argument as a matter of law dismissal. And to the extent this Court has discretion to determine the sanction in the case I would find that the vehicle that was seized in April of '99 and a hearing wasn’t at least scheduled until January of this year, that to the extent this Court has discretion in determining the sanction to impose, I believe the appropriate sanction is to dismiss the proceeding. So I will for those reasons grant the Defendant’s motion to dismiss. DISCUSSION The County asserts that the trial court erred when it dismissed the complaint.

It argues that Art. 27, § 297(h)(6)(i) does not require that the forfeiture hearing be held within the sixty day period. 3 We agree. ¹⁰⁶ Article 27, § 297 provides for forfeitures and seizures generally. It provides, in pertinent part: (h) Procedure; notice.... * * * (6)(i) The court shall set a hearing on the forfeiture claim within 60 days after the later of the posting or final publication of the notice under paragraph (4) of this subsection if an answer has been timely filed. (ii) The court may order forfeiture without a hearing of the property interest of any person who fails to timely file an answer. Section 297, by design, is a harsh law. “The purpose of the statutory scheme is to impede the drug trade by depriving drug dealers of the instrumentalities that facilitate the sale and use of illegal drugs.” Boyd v. Hickman, 114 Md.App. 108, 118 , 689 A.2d 106 , cert. denied, 346 Md. 26 , 694 A.2d 949 (1997).

As part of the controlled dangerous substances law, the General Assembly has directed that the “provisions of this subheading shall be liberally interpreted and construed so as to effectuate its general purpose.... ” Art. 27 § 276. The Court of Appeals has recently held, however, that despite that legislative directive, forfeiture stat ¹⁰⁷ utes are not favored in the law and, thus, should be interpreted under a “strict constructionist theory.” Prince George’s County v. Vieira, 340 Md. 651 , 667 A.2d 898 (1995). The Court concluded that “although the petitioner’s assertion that this statute is to be liberally interpreted and construed is correct, the forfeiting authority is still required to follow the procedures proscribed by the statute, and these procedures should be strictly imposed to provide post-seizure due process protection to the defendant.” Vieira, 340 Md. at 659 , 667 A.2d 898 . In State v. One 1980 Harley Davidson Motorcycle, 303 Md. 154 , 492 A.2d 896 (1985), the Court of Appeals held that both the trial court and this Court erred in interpreting the statute to mean that a hearing must be “held” within the proscribed time period.

The statutory language under review in Harley Davidson reads as follows: “The hearing shall be scheduled no more than 30 days after conviction of the defendant.” The Court of Appeals interpreted the statutory provision to mean that a forfeiture hearing must be scheduled within thirty days of conviction, but that the scheduled date could be later than thirty days after conviction. The Court of Appeals found no ambiguity with the term “scheduled,” stating: “Had the Legislature intended that a hearing on the forfeiture petition was to be held within 30 days of conviction, it could have said so; it did not, and with good reason.” Harley Davidson, 303 Md. at 159 , 492 A.2d 896 . The “good reason” included a “congested trial docket” and the fact that the courts, and not the state’s attorneys, or, as in this case, the County attorneys, control the courts’ calender. When Harley Davidson was decided, the 1984 amendment had changed the language from “the hearing shall be scheduled” to “[t]he court shall set the case for trial not less than thirty nor more than sixty days thereafter.” Since the 1984 amendment and the decision in Harley Davidson , with which the General Assembly is presumably aware, the statute has undergone further amendments.

We note, however, that the legislature still has not employed language that expressly ¹⁰⁸ requires that the forfeiture hearing be “held” within a prescribed time period as suggested by the Court of Appeals. Harley Davidson, 303 Md. at 159 , 492 A.2d 896 . Reading the subsequent statutory amendments in light of Harley Davidson , we are satisfied that the substitution of the word “set” for “scheduled” does not require that the forfeiture hearing be held within the sixty day time frame, but rather, that it be scheduled within the prescribed period. 4 That is consistent with the use of the word “set” generally, “to fix definitely; establish,” Webster’s Desk Reference Dictionary 413 (1996 Ed.) and with the term “set down,” “To schedule (a case) for trial or hearing, usu[ally] by making a docket entry.” Blacks Law Dictionary, 1376 (7th Ed.). As now written, § 297(h)(6)(i) does not require that a hearing be set until a timely answer is filed.

The answer in this case was filed on September 7, 1999. 5 Strictly construed, the statute would require that the hearing be “set” 60 days after the later of the posting or final publication of the notice, which in this case was June 27,1999. Sixty days from that date was ¹⁰⁹ August 26, 1999, a date twelve days earlier than the filing of the answer. Under the circumstances of this case, strict construction of the statute would appear impossible. The answer did not request a hearing, but a hearing was requested on October 7, 1999.

One day later, the clerk set a hearing date of January 20, 2000. Even if we were to hold that the clerk of the court was to set the hearing for a date within sixty days of the answer as requested by the County Attorney, we would not find that dismissal of the Complaint was the appropriate sanction for failure to do so. As the Court of Appeals stated in Harley Davidson, “We observe, as did the hearing judges, that each of the State’s Attorneys filed timely requests for hearings on the petitions, which is all they could do; the court controls its calender, not the State’s Attorney. Consequently, the State should not ordinarily suffer the sanction of dismissal because of an error on the part of the court’s administrative staff.” Harley Davidson, 303 Md. at 160 , 492 A.2d 896 .

The Court in Harley Davidson found that dismissal was an improper sanction for failure to timely schedule the hearing. In this case, the County attorney alerted the clerk’s office to the statutory provisions and the need to “set” the hearing in accordance with the applicable law. The hearing was scheduled within 28 days of filing the answer and one day after Connolley requested a hearing. The hearing was scheduled for January 20, 2000, approximately 113 days later.

The Maryland forfeiture law has long been upheld on due process and Fourth Amendment grounds. See Mid-Atlantic Accessories Trade Association v. Maryland, 500 F.Supp. 834, 848 (D.Md.1980); Boyd v. Hickman, 114 Md.App. 108, 126 , 689 A.2d 106 , cert. denied, 346 Md. 26 , 694 A.2d 949 (1997); Gatewood v. State, 268 Md. 349 , 301 A.2d 498 (1973). The purpose of § 297(h) is to provide due process to someone whose property is subject to forfeiture and “ ‘to provide, after due notice has been given to the owner, a forum in which it can be established whether the vehicle seized was used to facilitate the transportation, sale and possession of controlled ¹¹⁰ dangerous substances----’ ” Boyd, 114 Md.App. at 125 , 689 A.2d 106 (quoting State v. One 1979 Pontiac Firebird, 55 Md.App. 394, 399 , 462 A.2d 73 (1983)). Here, it is difficult to see where Connolley was not afforded due process, as a hearing was set within one day of his request for a hearing.

The County filed its complaint with notice to the clerk of the court of the time constraints; it mailed Connolley notice of the complaint, and also executed a summons; and